Citation Nr: 0713490
Decision Date: 05/08/07 Archive Date: 05/17/07
DOCKET NO. 04-12 322 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Newark, New
Jersey
THE ISSUES
1. Entitlement to an initial evaluation in excess of
70 percent for post-traumatic stress disorder (PTSD).
2. Entitlement to an initial evaluation in excess of
60 percent for chronic fatigue syndrome.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
A. P. Simpson, Counsel
INTRODUCTION
The veteran served on active duty from December 1990 to June
1991, with four months prior active duty.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from an August 2002 rating decision of the Newark,
New Jersey, Department of Veterans Affairs (VA) Regional
Office (RO). In pertinent part of this decision, the RO
awarded service connection for post-traumatic stress disorder
and chronic fatigue syndrome and assigned 70 percent and
60 percent evaluations, respectively. The veteran asserts he
warrants evaluations in excess of those assigned.
The Board notes that in an October 2006 supplemental
statement of the case, the RO included issues of entitlement
to service connection for a low back strain and entitlement
to an initial compensable evaluation for gastrointestinal
disorder with chemical sensitivity as being part of the
current appeal. The veteran's representative also included
these two issues in the March 2007 informal hearing
presentation. However, the Board does not find that these
two issues were perfected for the current appeal.
Specifically, in a February 2003 rating decision, the RO
denied service connection for low back strain and granted
service connection for gastrointestinal disorder with
chemical sensitivity and assigned a noncompensable
evaluation. In March 2003, the veteran submitted a notice of
disagreement addressing both issues, and a statement of the
case was issued in March 2004. It must be noted that a
separate statement of the case addressing the two issues on
the title page was also issued on the same day in March 2004.
That same month, the veteran submitted a VA Form 9, Appeal to
the Board, wherein he checked the box that states, "I have
read the statement of the case and any supplemental statement
of the case I received. I am only appealing these issues:
(List below.)." The veteran indicated that he was appealing
the rating of 70 percent for post-traumatic stress disorder
and the rating of 60 percent for chronic fatigue syndrome.
He attached documents to the VA Form 9, which addressed only
those two issues listed on the title page. He made no
mention of the other two issues.
Further supporting this conclusion that these claims are not
part of the current appeal is that the veteran has not
submitted additional argument regarding these two claims and
the veteran's representative did not include these two issues
in the "Appeal Pre-Certification Review," submitted in
February 2007. Thus, the Board does not consider the two
issues of entitlement to service connection for a low back
strain and entitlement to an initial compensable evaluation
for gastrointestinal disorder and chemical sensitivity as
being part of the current appeal, as there is no substantive
appeal. See 38 C.F.R. § 20.200 (2006) (appeal before Board
consists of timely filed notice of disagreement in writing,
and after the issuance of a statement of the case, a
substantive appeal).
Additionally, the RO denied a claim for service connection
for skin rashes in the August 2002 rating decision. The
veteran's notice of disagreement, received that same month,
included this issue as one with which he disagreed. A
statement of the case addressing this issue was sent in March
2005. The veteran did not submit a substantive appeal for
this claim, and thus it is not part of the current appellate
review. See id.
Finally, during the appeal, the veteran had filed a claim for
a total rating for compensation based upon individual
unemployability. The claim was initially denied in a May
2003 rating decision, and the veteran submitted a notice of
disagreement. The claim was subsequently granted in a May
2004 decision. Thus, that issue is not part of the current
appellate review. See Grantham v. Brown, 114 F.3d 1156,
1158-59 (Fed. Cir. 1997) (notice of disagreement following
denial of a particular claim for service connection cannot be
construed as a notice of disagreement following the granting
of service connection for that claim); Hamilton v. Brown, 4
Vet. App. 528 (1993)(en banc), aff'd, 39 F.3d 1574 (Fed. Cir.
1994) (a notice of disagreement ceases to be valid if the RO
grants the benefit sought on appeal).
FINDINGS OF FACT
1. Post-traumatic stress disorder is manifested by severe
impairment in the ability to work, no gross impairment in
thought processes, adequate grooming, no hallucinations and
delusions, no evidence of disorientation to time and place,
and intact memory.
2. Chronic fatigue syndrome is manifested by no evidence
that the veteran's routine daily activities have been almost
completely restricted or that he has been precluded from
self-care.
CONCLUSIONS OF LAW
1. The criteria for an initial evaluation in excess of
70 percent for post-traumatic stress disorder have not been
met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R.
§ 4.130, Diagnostic Code 9411 (2006).
2. The criteria for an initial evaluation in excess of
60 percent for chronic fatigue syndrome have not been met.
38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.88b,
Diagnostic Code 6354 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000)
(codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106,
5107, and 5126 (West 2002 & Supp. 2006)) redefined VA's duty
to assist the veteran in the development of a claim. VA
regulations for the implementation of the VCAA were codified
as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and
3.326(a).
The notice requirements of the VCAA require VA to notify the
veteran of any evidence that is necessary to substantiate his
claim, as well as the evidence VA will attempt to obtain and
which evidence he is responsible for providing. Quartuccio
v. Principi, 16 Vet. App. 183 (2002). The requirements apply
to all five elements of a service connection claim: veteran
status, existence of a disability, a connection between the
veteran's service and the disability, degree of disability,
and effective date of the disability. Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006). Such notice must be
provided to a claimant before the initial unfavorable
decision on a claim for VA benefits by the agency of original
jurisdiction (in this case, the RO). Id; see also Pelegrini
v. Principi, 18 Vet. App. 112 (2004). However, the VCAA
notice requirements may be satisfied if any errors in the
timing or content of such notice are not prejudicial to the
claimant. Id.
In this case, in May 2006 and July 2006 letters, the RO
provided notice to the veteran regarding the information and
evidence needed to substantiate claims for increase, the
information and evidence that must be submitted by the
veteran, and the information and evidence that will be
obtained by VA. These letters also notified the veteran that
he should advise VA of and/or submit to VA any further
evidence that is relevant to the claims. Both of these
letters informed the veteran how disability evaluations and
effective dates are assigned and the type evidence which
impacts those determinations. Further, the October 2006
supplemental statement of the case reflects the RO's
readjudication of the claims after providing that notice.
See Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005),
reversed and remanded, 444 F.3d 1328 (Fed. Cir. 2006),
affirmed, 20 Vet. App. 536 (2006); see also, Prickett v.
Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a
fully compliant VCAA notification followed by readjudication
of the claim, such as in a statement of the case or
supplemental statement of the case is sufficient to cure a
timing defect). Thus, all notice requirements were met.
The record also reflects that VA has made reasonable efforts
to obtain relevant records adequately identified by the
veteran. Specifically, the information and evidence that
have been associated with the claims file consists of the
veteran's VA treatment records, examination reports, and
records from the Social Security Administration. No further
development is indicated.
In summary, the VCAA provisions have been satisfied. See
38 U.S.C.A. §§ 5102 and 5103 (West 2002 & Supp. 2006);
38 C.F.R. §§ 3.159(b), 20.1102 (2006). The veteran has not
claimed that VA has failed to comply with the notice
requirements of the VCAA.
II. Increased Ratings
The veteran asserts that his service-connected disabilities
are so severe as to warrant evaluations in excess of
70 percent for post-traumatic stress disorder and in excess
of 60 percent for chronic fatigue syndrome.
Under the applicable criteria, disability evaluations are
determined by the application of a schedule of ratings which
is based on average impairment of earning capacity. 38
U.S.C.A. § 1155; 38 C.F.R. Part 4 (2006). Separate
diagnostic codes identify the various disabilities. VA has a
duty to acknowledge and consider all regulations which are
potentially applicable through the assertions and issues
raised in the record, and to explain the reasons and bases
for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589
(1991).
The veteran is contesting the disability evaluation that was
assigned following the grant of service connection for post-
traumatic stress disorder and chronic fatigue syndrome. In
Fenderson v. West, 12 Vet. App 119 (1999), the United States
Court of Appeals for Veterans Claims (Court) recognized a
distinction between a veteran's dissatisfaction with an
initial rating assigned at the time service connection for a
disability is granted and a claim for an increased rating of
a service-connected disorder. In the case of the assignment
of an initial rating for a disability following an initial
award of service connection for that disability (the
circumstances of the present appeal), separate ratings can be
assigned for separate periods of time based on the facts
found, which is called "staged" ratings.
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a preponderance of the evidence is against
the claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
A. Post-traumatic stress disorder
The veteran asserts that he could not work because he was
overwhelmed by stress, anxiety, pressure, and the inability
to concentrate or stay focused on the construction site. He
found it very difficult to get along with people, and he did
not do well with the competitiveness, noise, and odors. He
described having intrusive thoughts and flashbacks. The
veteran was a painter and stated that he could not paint on
his own because it would go against the union bylaws, which
prohibited him from soliciting his own work. He argues that
disability due to his PTSD symptoms warrants a 100 percent
evaluation, instead of the 70 percent rating he currently
receives.
Disability due to post-traumatic stress disorder is evaluated
under Diagnostic Code 9411. The regulations establish a
general rating formula for mental disorders.
38 C.F.R. § 4.130. Ratings are assigned according to the
manifestation of particular symptoms. However, the use of
the term "such as" in 38 C.F.R. § 4.130 demonstrates that
the symptoms after that phrase are not intended to constitute
an exhaustive list, but rather are to serve as examples of
the type and degree of the symptoms, or their effects, that
would justify a particular rating. Mauerhan v. Principi, 16
Vet. App. 436 (2002). Accordingly, the evidence considered
in determining the level of impairment under § 4.130 is not
restricted to the symptoms provided in the Diagnostic Code.
Instead, VA must consider all symptoms of a claimant's
condition that impact on the level of occupational and social
impairment, including, if applicable, those identified in the
DSM-IV (AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL
MANUAL OF MENTAL DISORDERS (4th ed. 1994)). Id.
Under 38 C.F.R. § 4.130, Diagnostic Code 9411, the criteria
and evaluations are as follows, in part:
Total occupational and social impairment,
due to such symptoms as: gross impairment
in thought processes or communication;
persistent delusions or hallucinations;
grossly inappropriate behavior;
persistent danger of hurting self or
others; intermittent inability to perform
activities of daily living (including
maintenance of minimal personal hygiene);
disorientation to time or place; memory
loss for names of close relatives, own
occupation, or own name - 100 percent
Occupational and social impairment, with
deficiencies in most areas, such as work,
school, family relations, judgment,
thinking, or mood, due to such symptoms
as: suicidal ideation; obsessional
rituals which interfere with routine
activities; speech intermittently
illogical, obscure, or irrelevant; near-
continuous panic or depression affecting
the ability to function independently,
appropriately and effectively; impaired
impulse control (such as unprovoked
irritability with periods of violence);
spatial disorientation; neglect of
personal appearance and hygiene;
difficulty in adapting to stressful
circumstances (including work or a
worklike setting); inability to establish
and maintain effective relationships -
70 percent
The Board has carefully reviewed the evidence of record and
finds that the preponderance of the evidence is against an
initial evaluation in excess of 70 percent for post-traumatic
stress disorder. Essentially, the level of severity of the
veteran's symptoms does not rise to the level of severity of
those listed under the 100 percent evaluation. For example,
there is no evidence of any gross impairment in thought
processes and no evidence of disorientation as to time or
place. In June 2002, the veteran was described as oriented
times three with appropriate affect. He was also described
as cooperative and pleasant. There was no disorientation as
to time or place. In March 2003, the examiner noted the
veteran's thought processes and content were normal with no
perceptual problems. He was described as being oriented to
person, place, and time. In March 2005, the examiner stated
that the veteran's thought processes were logical and goal
directed and that he communicated effectively. The treatment
records note that the veteran is able to communicate his
feelings. The veteran does not have persistent delusions or
hallucinations. In March 2003, the examiner stated that the
veteran had no hallucinations. In March 2005, the veteran
was noted to have neither hallucinations nor delusions.
There is no evidence of grossly inappropriate behavior
reported by either the veteran himself or by trained medical
professionals. While the veteran described having
disassociative episodes with an impulse to kill another
person, he expressed fear of such episodes and it was noted
that he had not committed any acts of violence. Such would
indicate that the veteran was aware that such episodes were
wrong and knew not to act on them. The fact that he was
frightened by such episodes shows he does not have "grossly
inappropriate behavior, " as he is aware that such episodes
are indicative of inappropriate behavior. The veteran has
been reported to have suicidal ideation, but without any
plan. Medical records during the appeal period also show
that the veteran denied both homicidal and suicidal
ideations. See March 2003 and March 2005 VA examination
reports.
The veteran is able to perform activities of daily living.
When his appearance has been noted, he has been described as
neat and clean (June 2002), and an examiner specifically
noted that the veteran managed basic activities of daily
living (March 2005). Additionally, there is no evidence of
any memory loss. In June 2002, the veteran was able to
describe seven stressors from his service in the Persian Gulf
(more than a decade ago). The examiner to whom the veteran
reported these stressors noted that the veteran "exhibited
excellent memory." In March 2005, the examiner stated that
the veteran's short-term and long-term memory were intact.
The Board is aware that the symptoms listed under the
100 percent evaluation are examples of the type and degree of
symptoms for that evaluation and that the veteran need not
demonstrate those exact symptoms to warrant a 100 percent
evaluation. See Mauerhan, supra. However, the symptoms
listed under the 100 percent evaluation contemplate a person
who is not in touch with reality and cannot remember his own
family's names. The veteran's symptoms shown throughout the
appeal period are not comparable in severity to the symptoms
contemplated for the 100 percent evaluation. See 38 C.F.R.
§ 4.130, Diagnostic Code 9411. For example, the veteran is
consistently described as alert and oriented. He is able to
describe his emotions and how he feels about his
relationships with his wife, his children, and his friends.
He has good days and bad days and is able to articulate why
some days are better than others. In May 2006, the veteran
reported he did not feel depressed and he denied having
intrusive thoughts or being anxious. The veteran volunteers
for his church at times. This is additional evidence against
a finding that the veteran's PTSD symptoms rise to the level
of those contemplated under the 100 percent evaluation for
that disorder.
The veteran's GAF score has varied throughout the appeal
period from 20 to 61, which range between very serious
symptoms to moderate symptoms. See DIAGNOSTIC AND STATISTICAL
MANUAL OF MENTAL DISORDERS at 46-47. The Board finds that the
more serious symptoms are contemplated under the 70 percent
evaluation, which evaluation includes symptoms such as
obsessional rituals interfering with routine activities,
intermittent illogical speech, panic attacks, impaired
impulse control, etc. See 38 C.F.R. § 4.130, Diagnostic Code
9411.
There is some evidence in the claims file that the veteran's
post-traumatic stress disorder is totally disabling, as
evidenced by the award of Social Security Administration
disability benefits based mostly upon the veteran's
psychiatric symptoms. The Board finds, however, that it
cannot grant a 100 percent evaluation based upon the facts in
this case. Again, the 100 percent evaluation provides
examples of the types of symptoms that would warrant a
100 percent evaluation, and the severity of such symptoms
does not correlate with the symptoms exhibited by the
veteran. The veteran is in receipt of a total rating for
compensation based upon individual unemployability, which
contemplates the veteran's inability to work due, in part, to
the service-connected post-traumatic stress disorder.
The veteran is competent to report his symptoms; however, to
the extent that he asserts the service-connected post-
traumatic stress disorder warrants an initial evaluation in
excess of 70 percent, the Board finds that the preponderance
of the evidence is against such finding for the reasons
stated above. The benefit-of-the-doubt rule is not for
application. Gilbert, 1 Vet. App. at 55. Accordingly, in
view of the denial of entitlement to an increased evaluation
at any period since the effective date of service connection,
the Board finds no basis upon which to predicate assignment
of "staged" ratings pursuant to Fenderson, supra.
Review of the record reveals that the RO has not considered
referral of the case to the Under Secretary for Benefits or
the Director, Compensation and Pension Service for the
assignment of an extraschedular rating under 38 C.F.R.
§ 3.321(b)(1) (2006). This regulation provides that to
accord justice in an exceptional case where the schedular
standards are found to be inadequate, the field station is
authorized to refer the case to the Under Secretary or the
Director, Compensation and Pension Service for assignment of
an extraschedular evaluation commensurate with the average
earning capacity impairment. The governing criteria for such
an award is a finding that the case presents such an
exceptional or unusual disability picture with such related
factors as marked interference with employment or frequent
periods of hospitalization as to render impractical the
application of the regular schedular standards.
The Court has held that the Board is precluded by regulation
from assigning an extraschedular rating under 38 C.F.R.
§ 3.321(b)(1) in the first instance, however, the Board is
not precluded from raising this question, and in fact is
obligated to liberally read all documents and oral testimony
of record and identify all potential theories of entitlement
to a benefit under the law and regulations. Floyd v. Brown,
9 Vet. App. 88 (1996). The Court has further held that the
Board must address referral under 38 C.F.R. § 3.321(b)(1)
only where circumstances are presented which the Under
Secretary or Director of VA's Compensation and Pension
Service might consider exceptional or unusual. Shipwash v.
Brown, 8 Vet. App. 218, 227 (1995). Having reviewed the
record with these mandates in mind, the Board finds no basis
for further action on this question, as the 70 percent
evaluation contemplates marked interference with employment
and takes into consideration hospitalization for the service-
connected disability. VAOPGCPREC. 6-96 (1996); 38 C.F.R.
§ 4.1 (2006) ("Generally, the degrees of disability
specified are considered adequate to compensate for
considerable loss of working time from exacerbations or
illnesses proportionate to the severity of the several grades
of disability.").
B. Chronic fatigue syndrome
The veteran asserts that disability due to his chronic
fatigue syndrome warrants a higher evaluation than the
currently assigned 60 percent rating. He has not made
specific arguments as to why he believes he is entitled to
the next higher evaluation for this disability.
Chronic fatigue syndrome is evaluated under Diagnostic Code
6354. Diagnostic Code 6354 provides a 60 percent evaluation
for signs and symptoms which are nearly constant and restrict
routine daily activities to less than 50 percent of the pre-
illness level, or; which wax and wane, resulting in periods
of incapacitation of at least six weeks total duration per
year. 38 C.F.R. § 4.88b, Diagnostic Code 6354. A 100
percent evaluation is warranted where the signs and symptoms
are nearly constant and so severe as to restrict routine
daily activities almost completely and which may occasionally
preclude self-care. Id. For the purpose of evaluating this
disability, the condition will be considered incapacitating
only while it requires bed rest and treatment by a physician.
Id. at Note.
After having carefully reviewed the evidence of record, the
Board finds that the preponderance of the evidence is against
an initial evaluation in excess of 60 percent for chronic
fatigue syndrome. The veteran has undergone multiple
examinations throughout the appeal period. In none of them
does the veteran report symptoms that would meet the criteria
for the 100 percent evaluation. See 38 C.F.R. § 4.88b,
Diagnostic Code 6354. For example, a February 2002 VA
examination report shows that the veteran reported the
inability to concentrate, headaches, tiredness, and
difficulty sleeping at night. The examiner determined the
veteran had a normal physical examination. In June 2002, the
veteran reported having fatigue for 24 hours after exercising
and a constant headache. The examiner stated that the
veteran "seem[ed] to be incapacitated by more than 50%
regarding his daily routine activities." In December 2002,
the veteran reported tiredness, weakness, problems with
memory, and concern with his general health. Following
examination, the examiner stated the veteran had a normal
physical examination. In an April 2003 VA examination
report, the examiner stated he felt the veteran's fatigue was
more likely part of his psychiatric disorder rather than a
separate diagnosis. He noted that the veteran agreed he
could probably return to work and work an eight-hour day but
that his nerves would become raw because of the pressures at
work. In a March 2005 VA examination report, the examiner
noted that the veteran did not have a low grade fever, non-
exudative pharyngitis or palpable or tender cervical or
axillary lymph nodes. He veteran reported he was tired and
weak, and had pain in the joints, but did not have
generalized muscle aches. The examiner further noted that
the veteran had no history of fatigue lasting for 24 hours or
longer after exercise and that he is not experiencing
headaches.
Such symptoms do not demonstrate that the veteran's fatigue
is nearly constant and so severe as to restrict routine daily
activities almost completely. The veteran has never alleged
that the symptoms associated with chronic fatigue syndrome
are so severe that they restrict his daily activities or
preclude from caring for himself. See id. A May 2006 VA
examination report shows that the veteran reported he had
been working outdoors including mowing the lawn. He
described it as being fun and found it therapeutic. This is
evidence against a finding that chronic fatigue syndrome
restricts him from performing daily activities. Therefore,
in the absence of medical evidence that the veteran has
experienced nearly constant signs and symptoms of fatigue at
any point since the effective date of service connection, a
rating in excess of 60 percent since is not warranted.
The Board concludes that, for the reasons set forth above,
the preponderance of the evidence is against an initial
evaluation in excess of 60 percent for chronic fatigue
syndrome. The benefit-of-the-doubt rule is not for
application. Gilbert, 1 Vet. App. at 55. Accordingly, in
view of the denial of entitlement to an increased evaluation
for any period since the effective date of service
connection, the Board finds no basis upon which to predicate
assignment of "staged" ratings pursuant to Fenderson,
supra.
Review of the record reveals that the RO has not considered
referral of the case to the Under Secretary for Benefits or
the Director, Compensation and Pension Service for the
assignment of an extraschedular rating under 38 C.F.R.
§ 3.321(b)(1). As noted earlier, this regulation provides
that to accord justice in an exceptional case where the
schedular standards are found to be inadequate, the field
station is authorized to refer the case to the Under
Secretary or the Director, Compensation and Pension Service
for assignment of an extraschedular evaluation commensurate
with the average earning capacity impairment. The governing
criteria for such an award is a finding that the case
presents such an exceptional or unusual disability picture
with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards.
The Court has held that the Board is precluded by regulation
from assigning an extraschedular rating under 38 C.F.R.
§ 3.321(b)(1) in the first instance, however, the Board is
not precluded from raising this question, and in fact is
obligated to liberally read all documents and oral testimony
of record and identify all potential theories of entitlement
to a benefit under the law and regulations. Floyd, 9 Vet.
App. 88. The Court has further held that the Board must
address referral under 38 C.F.R. § 3.321(b)(1) only where
circumstances are presented which the Under Secretary or
Director of VA's Compensation and Pension Service might
consider exceptional or unusual. Shipwash, 8 Vet. App. at
227. Having reviewed the record with these mandates in mind,
the Board finds no basis for further action on this question,
as the 60 percent evaluation contemplates marked interference
with employment. The evidence has not shown that the veteran
has been hospitalized for chronic fatigue syndrome.
VAOPGCPREC. 6-96; 38 C.F.R. § 4.1.
ORDER
An initial evaluation in excess of 70 percent for post-
traumatic stress disorder is denied.
An initial evaluation in excess of 60 percent for chronic
fatigue syndrome is denied.
_____________________________________________
DENNIS F. CHIAPPETTA
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs